Well, I suppose I would consider myself a textualist, but Obama hasn’t nominated anybody. The Constitution doesn’t say “The President shall nominate appointees unless the party controlling Congress says he shouldn’t.”
A textualist would also point out that the Constitution doesn’t say “Congress must give or withhold its consent during the same session wherein the nomination is made.” No timeline is specificed, and Congress has discretion as to when to take up the nomination.
I understand it’s frustrating - Obama is not going to get to fill another seat on the SC. And there is a non-zero chance that the next President will be Republican, and he will. But that’s how the system is set up. Elections have consequences, and Mr. “Let’s Filibuster Alito” has now found out that this can come back and bite him in the ass.
Exactly. I understand the GOP frustration “WTF? He gets to nominate another one!!!” and they just lashed out without thinking. But I’m sure once cooler heads prevail, it’ll probably still be a couple weeks before Obama makes a nomination, they’ll just put it through the normal procedure even if they have no intention of confirming.
Consent is expressed in the hearing that they may either vote up or down on.
The president may nominate another candidate in the case of a down vote.
Then they have more hearings and another vote.
You’re positing a 9 month filibuster so that no votes need occur. They only try to do that in threadland. You want the R party to exist going forward you need to get real.
Let’s assume, arguendo, that the text requires hearings. (I don’t believe for a second that it does, but let’s pretend.) What does the text say about the timeframe for those hearings? That is, what does a textualist reading of the constitution say about how quickly the Senate must hold such hearings?
I like what the Senate page says about this, since they are the ones who do the interpreting here:
Short and to the point. The president has the authority to nominate, but the nominee isn’t appointed (seated) until the Senate confirms him or her. That’s it. Nothing more and nothing less.
What on earth does that have do with the subject of this thread? I don’t even know what it means.
In fact, I’m at a loss to understand how any of your posts in this entire thread have had anything at all to do with textualism. We’re not discussing what we wished that clause meant.
Because the text is clear that president has the power to nominate, and that the court should exist.
Good point. That’s another one, since clearly every president has the authority to do so, and as above, there is no guarantee that there will ever be a GOP president again.
Well having 4-4 opinions can leave a lot of issues split between the circuits.
I don’t know about nominations to the supreme court but generally speaking the law reads reasonableness into everything unless there is a clear decision to allow unreasonable behavior. I would suggest that failing to proceed on judicial nominations in order to deny the current president the ability to exercise one of their constitutional powers is not reasonable.
See taking these two statements together, I am having a hard time understanding why you think the Senate’s advice of “you shouldn’t make a nomination” is in line with the Constitution.
That is one way advice or consent could be given, but why do you believe it is the only way? Why can’t the Senate “advise” Obama that he should appoint Judge Luttig to the Supreme Court, and that they will not accept anyone else because it is convinced that Luttig is the right guy?
The problem with over-reading the “shall” is does it mean that the Senate is required to consent viz. shall provide advice and consent? So Obama decides to nominate Charlie Manson, does the Constitution require consent. If not then I don’t know how you read it to require the Senate to do anything.
The basic point is that the Constitution obviously expects the offices to be filled, with the President plus the Senate conducting the process. There’s no way to square that with a flat refusal by the Senate to do anything.
You know, if you read the whole thing, it seems obvious that the advice and consent is on the appointment, not the nomination
So telling him not to nominate is flat out obvious advising him to disobey the Constitution. He may appoint after the advice and consent, which of course implies it should go before the Senate in some form. I’ve been reading the cut up summary so much I forgot how clear this is.
I agree. The President really must nominate someone within a reasonable time, regardless what Senators may say. The Senate could certainly then reject that nominee, or several of them. But to be acting in accord with a plain understanding of their Constitutional responsibility, I think they have to act on the nominations, on the record.